# FILED December 10, 1997 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT NASHVILLE SEPTEMBE R SESSION, 1997
STATE OF TENNESSEE, ) C.C.A.NO. 01C01-9609-CR-00395 ) Appellee, ) ) ROBERTSON COUNTY ) V. ) ) HON.ROBERT W. WEDEMYER, JUDGE BILLY KEMP RIPPY, ) ) Appe llant. ) (AGGRAVATED ROBBERY)

FOR THE APPELLANT : FOR THE APPELLEE : MICHAEL R. J ONES JOHN KNOX WALKUP Distri ct Public

Defender Attorney General& Reporter FRED W. LOVE LISA A. NAYLOR Assistant Public Defender Assistant Attorney General 109 South Second Street 2nd Floor, Cordel l Hull Bui lding Clarksvi lle, TN 37040 425 Fifth Avenue North Nashvill e, TN 37243 JOHN WESLEY CARN EY, JR. Distri ct Attorney General DENT MORRISS Assistant Distri ct Attorney General 500 South Main Springfi eld, TN 37172

OPINION FILED ________________________ AFFIRMED THOMAS T. WOODALL, J UDGE-2- 

# OPINION

The Def enda nt, Bil ly

Kemp Rippy, appeal s as of ri ght foll owing a jury trial in the Circuit Cou rt of Robertson Count y where he was convicted of aggravated robbery. The trialcourt sentenced Defendant to t hirteen ( 13) years as a Range I I, Multipl e Offender. The Defendant rais es two issues on appeal: (1)the evidence was insu fficient to sustain a verdict of gu iltybeyond a reaso nable d oubt; and (2) the t rial cour t erred i n sentencing hi m to t hirte en (13) years for aggrava ted robb ery. W e affirm the judgm ent of the tria l court.

The victi m, James Roy Wilson, resided at 111 Blair St reet in Spr ingfiel d, Tennessee. At the ti me of trial , he was 61 -years-old and ha d been confined to a whee lchair fo r appro ximate ly two and one-half years because of a broken hi p. The victi m receives a di sabili ty check once per month in the amount

of $270-275. He testified that h e suffers f rom depression and does have a d ri nki ng pr

obl em. At trialhe said that

he had known the Defendant for more than 20 years andthat theywere drinking b uddies
. The Defendant had been stay ing with Mr . Wilson for two to thre e week s prior to M ay 1994 , but did no t pay rent to stay there
.
On the night

of the off

ense, the Defendant

and the vic

tim had been dri nking together. Mr. Wilson test ified t hat he drank one quar t of beer andgave one quart to the Defendant, which was th e only alcohol he saw t he Defendant consume that evening. The victi m had appro ximate ly $270 in cash in his possession because his brother- in-law had cashed his disability check for him and delivered the cash earlier that eveni ng. The Defendant was present when Wilson’s brot her-in- law-3-

broughtthe money. Mr. Wilson testi fied that th e Def enda nt yelled , “[y]ou c an’t hide that mo ney from me,” and began waving a four-inch knife in hi s face. Wilson said that the Defe ndan t hit him in the fa ce thre e or fou r times and s plit his lip. The victi m said that he wasafraid of the Defenda nt so he gave him the m oney. The victi m testifi ed at tri al that t he Defendant also hit him i n the legswith a base ball bat and slamm ed his he ad into the wall. There was some conflict in the testimony

as to whether or not the v ictim i nitial ly tol d Detective Jeff White of t he Springfield Poli ce Department about these latter t wo acts.

The victi m testifi ed that theDefen dant the n said, “[y]ou won’t call no body,” and he stomped on the tel ephone and cut the telephone cord wi th his kni fe. The Defendant said he w ould kill W ilson if he told anyone . Mr. W ilson te s tifi ed that he knocked on his nei ghbor’s door i n the duplex, but that no one answer ed
. Because of his physical disabil ity and becaus e his tel ephone was not operabl e, the victim w as un able to attempt t o get furt her help that

night. The next morning, Mr. Wilso n saw h is acqua intance M arvin Bus h walk by and he called ou t to him forhelp. After brief ly speaki ng with the victi m, Bush went to a nei ghbor and immediately called th e police.

Detective White arrived at 111 Blair Street at approximatel y 8:00 a.m. af ter receivi ng the phone callfrom Bush . He tes tified tha t W ilson’s h air was messed up and that he saw

some dried blood on t he right si de of his mouth. He said that W ilson’s face appeared to be red on the ri ght side as wel l. Detect ive W hite noticed that some number s were broken out of the telep hone and that t he telephone cord ha d been cut with a sharp object. T he victim to ld Detec tive W hite-4-

thathe thought these events took place around 3: 00 a.m., but he testi fied at tri al that they too k place b etween 9:00 p.m . and m idnight.

Dete ctive White obtained a warr ant for t he arrest of

the Defendan t. Th e Defendant was questioned on M ay 17, 1994, and gave a statement to poli ce saying he was “on a lot of cocaine”

the night

in questi on and thathe just coul d not remem ber wha t happe ned tha t night.

Marvin Bush test ifi ed for t he defense, and stated that he had known th e victim for

prac ticall y hi s whol e li fe. He often purchas ed liquor f or Mr. Wilson even though he himself had quit drinki ng about six (6) months before t rial. He stated thathe had n ever kn own th e victim and theDef enda nt to hav e hadany

pro ble ms with each other

in the past . Bush testified that on the morning Wilson called out to him for hel p, that Wilson s aid the Defendant and another

man had been in a fighta t his house. Mr. B ush also testified that W ilson told him later t hat th e Defendant did not i n fact rob hi m. However, Bush sai d thathe thought t he victim was intoxi cated when he said t his. Wilson denied ever ma king that s tateme nt to Bush. Mr. Bu sh sa id that th e victim is a truthf ul person and a “man of his wor d” unless he is drunk. Bush admitted t hat Wilson was very vulnerabl e to be in g robbed or attacked because of hi s physicalconditi on.

The Defe ndan t testified in his own behalf . He stated t hat he and the victim had been drinki ng buddies for fifteen (15) to t

wenty (20) years. The Defendant said that the ev

ening prior

to the al leged robbery , he and another man had been in a fight at Wilson’s house. He claimed they fell over the c offee table and on to Wilson, and that the othe r ma n was bleeding when he l eft. He testifi ed that on-5-

the nightof the robber y he was on cocaineand alcohol. He told the pol ice, “I j ust don’t think

I could have done anything like t his to hi m.” At tr ial he testifi ed that he has no memory at allof what happened on t he night of the offens e.
I. S UFFICI ENCY OF THE EVI DENCE

When an accused chall enges the suff iciency of the convi cting evi dence, the standard is whe ther, aft er revie wing th e evide nce in the ligh t mos t favora ble to the prosecut ion, any r at ional tr ier of f

act could have found the essent ial eleme nts of the crim e beyon d a reas onable doubt. Jackson v. Virginia , 443 U. S. 307, 319 (1979 ). This standard i s applicabl e to findi ngs of guil t predicated upon directeviden ce, circ ums tantia l evi dence or a combinati on of direc t and circumstant ial evidenc e. State v . Matt hews , 805 S.W.2d 776, 779 (Ten n. C ri m. App. 1990). On appeal, the State is ent itl ed to th e strong est le giti mate view o f the evidence and allinf ere nces the ref rom. State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 197 8). Becau se a verdict of guil t removes the pr esumption of innocence and rep laces it w i th a presumpti on of guil t, the acc used has the burden in this court of illustr ating why the evidenceis insufficient to support the verdictreturned by

the tri er offact. State v. Tug gle , 639 S.W.2d 913, 914 (Tenn. 1982); State v. Grace , 493 S.W .2d 474, 476 (Tenn. 197 3).
Questions conce rning the credibility of the wit nesses, the wei ght and value to be given the evidence, as well asall factual i ssues raised by the evidence, are resolved by the trier of fact, n ot this cou rt. State v. Pappas , 754 S.W.2d 620, 623 (Tenn. Crim. A pp.), perm. to appeal denied , id . (Tenn. 1987). Nor may this court reweigh or reevalua te the evide nce. Cabbage , 571 S.W .2d at 835. A jury verdict-6-

approve d by the trialjudge accredits the State’s witnesses and resolves al l conflicts in fa vor of the S tate. Grace , 493 S.W .2d at 476
.
In order to sustain a conviction for aggra vated robbe ry, the evidence must show thatthe Defe ndant intenti onally or knowingly t

ook property

from Mr. Wilson by violence or by putt ing him in fear, and that this taking was accom plished w ith a deadly w eapon . See Tenn. Code Ann. §§ 39-13-401(a) and 39-13-402 (a)(1). A "deadly weapon"is defi ned in Tennessee Code Annotated s ection 39-11-1 06(a)(5) as:

(A) A fi rea rm or any thing m anif estly desi gned, made or adap te d for the purpose of inflicting death or serious bodily injury; or (B) Anything that i n the manner of its use or intended use is capab le of caus ing dea th or seriou s bodily injury ;

Mr. Wilson testi fied that the Defendant had been staying wi th him in t he weeks prior to the night in que stion. The D efendant wa s present wh en Mr. W ilson’s brot he r-in-l aw brought him $270-275cash from his di sabili ty check. The Defendant told the victi m, “[y]o u can’t hi de that moneyfrom m e,” while waving a four-inch knife in front of h is face. Mr. Wilson testi fied that the Defe ndan t hit him in the face and chest and slammed his head against the wall. He alsosaid that the Defendant hit

him in thelegs seve ral times w ith a baseball bat . Because he was afraid of

the Defendant, Mr. Wilson gave hi m the money. In fac t, thevictim testif ied he let Defendant have the money because he di dn’t want Defendant “working on me with that knife.” To prevent thevicti m from calli ng for help, the Defendant stomped on the phone an d cut t he phone cords wit h the knife. Detective White’s testi mony supports the victi m’s assertio ns pe rtaining to his-7-

physical injuri es and the damaged telephone. There was suffi cientevidence for a reasonable t rier of

fact to find that

the Defendant i ntentional ly or knowi ngly took money from the vi ctim byviolence or by pla cing th e victim in fear, a nd tha t this act was accomplis hed with a deadl y weapon.

The defen dant c onten ds tha t his leve l of intoxic ation n egate d his ability to form the specific intent nec essary to com mit agg ravated ro bbery. In order for the defendantto re ly up on voluntar y intox icatio n as a defense, " there must be evide nce that t he intoxication dep rived [him] of the m ental capacity to form spec ific intent. . . . The determinative questi on is no t whether [ he] was intoxi cated, but what wa s his me ntal capa city." Harre ll v. State , 593 S.W.2d 664, 672 (Tenn . Crim. A pp. 197 9) (citations omitted) . In this rega rd, whethe r th e defendantwas too intoxi cated to form the requ isite mental state wa s for the jury to determ ine. State v. Bell , 690 S.W.2d 879, 882 (Tenn. Crim. App. 1985). The jury in the case sub judice chose no t to believe that the Defendant was t oo intoxi cated to have acted“knowingly ” or“intent ionall y.” The vi ctim test ified how the Defen dant waived the knife in his face and told t he victi m that he could not hide the money. Furt her testi mony was tha t t he Defendant cut t he telephone cord and stomped the telephone i ndicati ng that the Defendant was cogniz ant that he should take steps to be sure th e victim could not pro mptly call for assistance. There was more than a suffi cient basi s for the j ury to determine that Defendant was no t too intoxica ted to hav e forme d the req uisite me ntal intent.

The Defen dant also conten ds that the te stim ony of Marvin B ush is more credible than the victim’s testimony. Mr. Bush testified that Mr . W ilson to ld him thatthe Defendant di d not in fact rob hi m. Howe ve r, the v ictim deni ed ever-8-

making tha t statement to M r. Bush. The credibil ity of the witnes ses, the wei ght to be given thei r testi mony, and the reco nciliation of c onflicts in the evidence a re matters entruste d exclusive ly to the jury as the tri ers offact. Byrge v. S tate , 575 S.W.2d 292, 295 (Tenn. Cri m. App. 1978). The jur y in theinstant

case decided to believe the vi ctim’s testi mony and this Cou rt wil l not second- guess that determ ination.

For all th e r easons d iscussed ab ove, sufficient evidence existed for the jury to find the Defe ndan t guilt y bey ond a reas onable dou bt of aggravated robbery. This issu e is withou t merit.

II. SENTENCING

In his seco nd issue , the Defe ndant argue s that th e trial co urt erre d in sentencing him to thi rteen years in the Depart ment of Correct ion. It is the respon sibility of the Defendant to have prepar

ed a transcri pt of"such part of the evidence orproceeding as is necess ary to convey a fair, accura te and co mplete account of what tr

anspired with respec t to thoseissues that are the bases of appea l." Tenn. R. App. P. 24( b ). Having f ailed to include t he transcri pt of the e videnc e at the sen tencing h earing, the Defen dant ca nnot no w be he ard to com plain about h is senten ce. State v. Arno ld , 719 S.W.2d 543, 546 (Ten n. C ri m. App. 1986). Wh en the record prese nted is incom plete o r inadequate, as is the case here, we must presume the correctness of the sentence imposed by the t rial court. State v. Coolidge , 915 S .W .2d 82 0, 826 -27 (T enn. C rim . A pp. 1995); Matthews , 805 S.W.2d at 784; State v. Beech , 744 S.W.2 d 585 , 58 8 (Te nn. Cri m. App. 1987 ).-9- Even though the t ranscript of the sentencing hearing is not included in the record, our rev ie w of what is in the recor d adequately supports the sentence imposed upon De fendant. Agg ravated robbe ry is a Class B felony . Tenn. Code Ann. § 39-13-402(b). Having been sentenced as a Ran ge II Multiple Offend er, the range for

Defendant’s sen tence is not less than twelve (12) years nor more than twenty (20 ) years. T enn. C ode An n. § 40-35-112 (b)(2). The pre-sentence report is included i n the record. From that repor t, it is eviden t that Defendant has two (2) prior conv iction s for third degree burglary classified as Class D fel onies, which justify the sen tence w ithin Ran ge II. Tenn. Code Ann. § 40-3 5-106(a)(1). In addition, the pre-se ntence repo rt shows that Defendant has forty-six (46) prior convicti ons forpublic intox ication, thre e (3) prior co nvictions fo r DUI, two (2) pr ior convicti ons for dri ving on a revoked l icense, one ( 1) prior convicti on for dri ving on a suspended licen se, one (1) pri or convict ion for ass ault and battery , one (1) prior convicti on for diso rderly conduct, one(1) pr ior con vict ion for resisting arrest, two (2) prior co nvictions fo r failure to ap pear, an d one (1 ) prior con viction for pe tit-10-

larceny. There is m ore than am ple evidence to justify en hanc eme nt of this Rang e II senten ce to thirtee n (13) yea rs. Tenn . Code Ann. § 4 0-35-11 4(1).

This issu e is withou t merit.

We affirm the ju dgme nt of the trial co urt.

____________________________________ THOMAS T. W OODALL, Judge

CONCUR:

___________________________________ GARY R. WA DE, Judge

___________________________________ J. CURWO OD W ITT, JR., Judge